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San Francisco and Los Angeles Daily Journals 2005

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San Francisco and Los Angeles Daily Journals 2005

December 18, 2005

A recent study by the California Economic Strategy Panel investigated the relationship between immigration and the California economy, and found that California, with its high rate of immigration, has performed equal to or better than the national average based on such measures as job creation, unemployment and wages over the past 15 years. Simply put, immigration provides net economic benefits to Californians.
A separate study by AnnaLee Saxenian, dean of the School of Information Management and Systems at UC Berkeley, found that immigrant entrepreneurs accounted for 30 percent of Silicon Valley start-ups during the late 1990s, comprising nearly $20 billion in sales and more than 60,000 jobs.

So while U.S. educators consistently and legitimately worry about schoolchildren falling behind in math and science, the country has been able to remedy this deficit, at least to some extent, by attracting the world's best, brightest and most technically proficient immigrants.

While some come as university students, many others arrive as working professionals. The U.S. government, however, tightly controls their immigration. And therein lies the challenge for U.S. employers.

To employ a foreign national, a U.S. employer must certify that there are no qualified U.S. workers for the job. The good news is that the re-engineered Labor Certification program implemented this spring by the U.S. Department of Labor has resulted in far speedier processing of labor certifications than in previous years. Most applications are now being processed within 90 days, instead of several years.

The bad news is that many foreign-born employees already working in the United States have temporary work visas that are only valid for a limited time (generally ranging from five to seven years, depending on the visa classification). Those who seek to remain longer must obtain a green card.

These aspiring permanent residents are now running into brick walls because Congress has set strict limits on how many immigrant visas are available and therefore on how many employees of U.S. businesses may immigrate in any one year. So-called "visa retrogression" is back, and the impact of this mounting waiting list on employers and their employees is significant and adverse.

Without a visa number, a green card cannot be fully processed. Congress has decreed that only 140,000 employment-based visas shall be available in a single year. Within this total, there are limits on how many foreign-born workers from any one country may immigrate during a single year.

As there are many educated professionals from India and China seeking to immigrate, the backlog is substantial - three to six years. All university graduates, as well as those who are in positions requiring at least two years of experience, face a backlog of four or more years, regardless of where they were born. Even a university professor of computer science must wait at least four years to complete the permanent resident green card process.

As the U.S. Department of Labor whittles down this years-in-the-making backlog of several hundred thousand labor certifications, the demand for these scarce visas continues to far exceed supply. No matter that in previous years, when processing was log-jammed at the Department of Labor, the full number of available visas was not used. At the stroke of midnight at the end of each fiscal year, these precious visa numbers disappear and may not be carried over without an act of Congress, a rare occurrence.

Complicating matters, visas for spouses and children of foreign-born employees are subtracted from the 140,000. With an average family size of 2.5 people, this leaves far fewer visas for those whose work has been determined to be in the national interest, those whom the U.S. Citizenship and Immigration Services determines to be of "extraordinary ability," those who have university level degrees, or those working in skilled positions.

In most cases, foreign-born employees and their families can remain in the United States while they are waiting to get through the process. Employers, however, face limitations on promoting or moving that employee during most of this period. If the employee is promoted to a position that is not materially the same as that in the original application, the process must be initiated all over again. If the employer needs to shut down an office where the employee was working and move that employee to another location, the process must start over.

This leads to contorted business decisions that are driven by an immigration backlog, rather than good business judgment. Employers also face the added costs of filing additional immigration petitions to maintain the employee's legal status.

Foreign-born employees may question whether it is even worthwhile to remain in this holding pattern. Career options may be better back home or in Canada, Australia or Europe. With advanced degrees and recognition in their fields, the best and the brightest have attractive options elsewhere. The United States stands to lose their considerable talent.

A bill pending in Congress, the Deficit Reduction Omnibus Reconciliation Act of 2005 (S. 1932), Title VIII, which is part of the budget bill, would patch this problem, allowing for recapture of unused visa numbers from previous years, exempting the family members from the limited visa count and making the process more friendly and predictable. Immigration restrictionists who would prefer that no immigrants be admitted to the United States are fighting even these moderate fixes.

Although this legislation will help in the short term, what is really needed is a comprehensive policy of business immigration, family immigration, asylum and refugee immigration and enforcement. The current system is a series of near-sighted fixes, mostly motivated by fluctuating political winds. And while illegal immigration needs to be addressed, it should not be done in isolation. A draconian enforcement-only bill, the Illegal Immigration Control Act of 2005 (HR 4427), has recently been introduced by Rep. F. James Sensenbrenner, R-Wisconsin.

The best of the existing comprehensive immigration reform proposals is the McCain-Kennedy Secure America and Orderly Immigration Act (S. 1033/H.R. 2330). This bipartisan bill would enhance border enforcement, strengthen sanctions against employers who violate immigration laws, create a guest worker program and offer legal status based on employment to those who are undocumented.

But, this bill does not adequately address the critical business immigration issues. It is high time that we adopt a systematic, thoughtful approach that will allow us to attract and retain immigrants who will continue to benefit our country and our economy.

Kirsten Schlenger is a founding partner of Weaver, Schlenger & Mazel, a firm that limits its practice to Immigration and Nationality Act law. She is certified as a specialist in Immigration and Nationality Act Law.

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